Tuesday round-up

Posted Tue, March 6th, 2018 7:07 am by Edith Roberts

Yesterday the justices added two cases to their merits docket for next term and asked for the views of the solicitor general in one case. Amy Howe covers the order list for this blog; her coverage first appeared at Howe on the Court.

The court also issued opinions in two cases yesterday. The first is Texas v. New Mexico, an original-jurisdiction case in which a unanimous court held that the United States can pursue claims against New Mexico for violation of the Rio Grande water compact. Ryke Longest has this blog’s opinion analysis. Subscript offers a graphic explainer for the opinion. At The Daily Caller, Kevin Daley reports that “[t]hough the ruling was limited to the facts at hand, the Court has now opened the door to federal intervention in agreements between the states, known as interstate compacts.”

For The Wall Street Journal, Jess Bravin reports that “[t]he Trump administration on Monday urged the Supreme Court to expand states’ authority to collect sales tax on internet transactions, joining a chorus of state officials seeking to overrule a 1992 precedent exempting many online retailers from having to add taxes to a consumer’s final price.” At OUPblog, Edward Zelinsky discusses the current case, South Dakota v. Wayfair, arguing that “the Supreme Court should overrule Quill in the Court’s role as guardian of the states against federal commandeering.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

At NPR, Nina Totenberg surveys the Supreme Court’s Second Amendment jurisprudence. In an op-ed at The Hill, Lawrence Friedman reflects on the court’s recent cert denial in Silvester v. Becerra, a challenge to California’s 10-day waiting period for firearms purchases, suggesting that “this is simply not the right time for the Supreme Court to step into debates about the Second Amendment’s scope.” In an op-ed at Fox News, Adam Carrington finds the justices’ reluctance “to rule on the constitutionality of gun regulations in a systematic fashion” “both strange and problematic.”

Briefly:

At Constitution Daily, Lyle Denniston reports that “[t]wo prominent leaders in Republican politics have urged the Supreme Court to consider the Pennsylvania redistricting case as a part of this year’s intense political battle for control of the U.S. House of Representatives – an issue outside the constitutional issues at stake.”

For The New York Times, Adam Liptak observes that the advancing age of death-row inmates is affecting the Supreme Court’s death-penalty jurisprudence, as “[t]he court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.”

At CNN, Joan Biskupic reports that “[o]ver the past year, the Trump administration has reversed the US government’s legal position on voting rights and election law, on the arbitration of workplace disputes, labor union power, and protections for gay and transgender people,” potentially affecting several pending Supreme Court cases.

At the Yale Journal on Regulation’s Notice & Comment blog, Jennifer Mascott looks at the federal government’s brief in Lucia v. Securities and Exchange Commission, in which the solicitor general “contends that the Court should revisit ALJ tenure protections that are too robust and insular[] to provide meaningful supervision under Supreme Court precedent”; she suggests that “there are reasons to reconsider the claim that the existence of an expert corps of agency adjudicators necessitates nearly impervious removal protections.”

At The George Washington Law Review’s On the Docket blog, Cori Alonso-Yoder considers Jennings v. Rodriguez, in which the court held that immigration-law provisions do not give detained aliens a right to periodic bond hearings but remanded the case for the lower courts to consider whether the provisions are constitutional, concluding that “the unsettled nature of the Jennings decision foreshadows a future in which the courts are likely to wrestle with increased calls to address these issues of detention and enforcement.”

At the Cato Institute’s Cato at Liberty blog, Jay Schweikert urges the justices to review a cert petition that will allow it to “reconsider its misguided qualified immunity jurisprudence,” which, he argues, “lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.”

In an op-ed at the Washington Examiner, Jay Hobbs weighs in on National Institute of Family and Life Advocates v. Becerra, a First Amendment challenge by crisis-pregnancy centers to a California law requiring disclosures about the availability of publicly funded family-planning services; he asserts that “[a]mong its many and obvious flaws, the act accepts as gospel truth the false narrative from NARAL that pregnancy centers mislead women.”

In an essay available at SSRN, Michael McConnell considers Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the court will decide whether the First Amendment bars Colorado from requiring a baker to create a cake for a same-sex wedding; he maintains that although “[s]ome may say that [a decision in favor of the baker] prioritizes one right over another – the right of freedom of speech, or perhaps the freedom of religion — over the right not to suffer invidious discrimination,” such a decision would instead “put these rights on an equal plane.”

At Excess of Democracy, Derek Muller tries to determine which recent justices “attract the most academic attention,” concluding that “Justice Scalia dwarfs all others, which was not surprising.”

We rely on our readers to send us links for our round-up. If you have or know of a recent (published in the last two or three days) article, post, podcast, or op-ed relating to the Supreme Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com. Thank you!

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.